SpamSuite.com

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

MOTION FOR LEAVE TO AMEND PLEADINGS TO ADD COUNTERCLAIM AND THIRD-PARTY COMPLAINT

In accordance with Rule 15(a) of the Federal Rules of Civil Procedure, Comcast Corporation (“Comcast”) moves for leave to amend its pleading to file the attached Counterclaim and Third-Party Complaint against Plaintiff-Counterdefendant, e360insight, LLC (“e360”), and Third-Party Defendants David Linhardt, Maverick Direct Marketing Solutions, Inc., Bargain Depot Enterprises, LLC, Northshore Hosting Company, LLC, Ravinia Hosting Company, LLC, Northgate Internet Services, LLC, and John Does 1-50 (collectively referred to as the “Third- Party Defendants”).

On January 15, 2008, e360 filed suit against Comcast alleging various state and federal law claims arising out of Comcast’s practice of filtering out some of e360’s commercial e-mails sent to Comcast’s subscribers. e360 subsequently moved for a preliminary injunction and expedited discovery on February 21, 2008. Comcast filed an answer to e360’s complaint on March 4, 2008, denying the salient allegations of the complaint, and asserting several affirmative defenses. On that same day, Comcast filed a Motion for Judgment on the Pleadings.

Comcast now seeks leave to amend its pleadings to file the attached Counterclaim and Third-Party Complaint. Each of these claims arises from the same conduct underlying e360’s
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complaint – the sending of massive amounts of unsolicited commercial e-mails to comcast.net subscribers. Through a variety of coordinated unlawful and fraudulent activities, e360 and Third-Party Defendants facilitate the ongoing e-mailing of spam to Comcast’s subscribers. In furtherance of these activities, e360 and Third-Party Defendants seek to circumvent Comcast’'s proprietary filtering technologies designed to protect subscribers from receiving such unwanted spam e-mails. e360’s and Third-Party Defendant’s actions violate federal and state law enacted to prevent the sending of spam (Counts I and II – CAN-SPAM Act; Count III – Illinois Electronic Mail Act); and federal and common law that protect Comcast’s computers and related hardware and software from abusive e-mailing practices (Count IV – Computer Fraud and Abuse Act; Count V – Trespass to Channels). The pleading also alleges that e360 and Third-Party Defendants have been unjustly enriched (Count VI); and that they have abused the Court’s process through litigation tactics employed for improper purposes (Count VI).

Federal Rule of Civil Procedure 15(a) provides that a party may amend its pleading by leave of court and that “leave [to amend] shall be freely given when justice so requires.” Absent “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment,” a request to amend should be permitted. See Ferguson v. Roberts, 11 F.3d 696, 706 (7th Cir. 1993) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

This motion is being brought promptly; discovery has not yet commenced. Furthermore, granting this motion is in the interest of justice, as Comcast alleges meritorious claims arising from e360’s and the Third-Party Defendants’ widespread spam activities, activities that offend public policy and the law.

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WHEREFORE, Comcast respectfully requests leave to amend its pleadings to file the attached Counterclaim and Third-Party Complaint.

Dated: March 18, 2008

Respectfully submitted,

LOEB & LOEB LLP
/s/ Douglas N. Masters
Douglas N. Masters
Nathan J. Hole
321 N Clark Street, Suite 2300
Chicago, IL 60610
Phone: (312) 464-3144
Fax: (312) 464-3111
[redacted]
Attorneys for Defendant
Comcast Corporation